The Best Escape from the U.S. Attorney Mess

The process for appointing U.S. Attorneys is sputtering. All too often, judges appoint U.S. Attorneys the White House does not want, and in response, President Trump fires those court-appointed U.S. Attorneys—often immediately. There is a way out of this mess, but it will be a tough pill to swallow for Democrats now and for Republicans in the future: The Senate needs to confirm more nominees. If that doesn’t happen, more power will be centralized in Washington, D.C., to the detriment of the office of U.S. Attorney.       

Earlier this month, federal judges of the Western District of Washington appointed Roger Rogoff as U.S. Attorney after Charles Neil Floyd’s 120-day interim term ended. Within minutes, Trump fired Rogoff, who has sued. His argument faces serious headwinds. True, normally the power to fire goes with the power to appoint, but that is just a presumption.  Here, by statute, “[e]ach United States attorney is subject to removal by the President.” It strikes me as quite a reach to think that the U.S. Supreme Court would allow Rogoff to avoid that language (if the case even got that far), especially given constitutional avoidance. As the Supreme Court recently explained in Trump v. Slaughter, “the President may remove his subordinates at will.” And although precedent on removal of lower level officials is mixed, the U.S. Supreme Court may well be champing at the bit for an opportunity to overrule the main precedent holding that Congress can protect supervising prosecutors from being fired. Indeed, Justice Brett Kavanaugh—who very rarely is in dissent—has  attacked that decision as “one of the Court’s biggest mistakes.”

Suspend disbelief, however, and assume that Rogoff prevails.  The victory would be a pyrrhic one for those who care about U.S. Attorneys because it would shift power to Department of Justice leaders in Washington, D.C.  Indeed, it is hard to see a path to victory that does not leave U.S. Attorneys as little more than figureheads.  

A bit of background. By law, there are 93 U.S. Attorneys across the United States who, “[e]xcept as otherwise provided by law,” are tasked with prosecuting “all offenses against the United States” and “prosecut[ing] or defend[ing], for the Government, all civil actions, suits or proceedings in which the United States is concerned” within their respective districts. Congress created this office in 1789 and, today, Senate-confirmed U.S. Attorneys serve a four-year term unless the President fires them or they resign. U.S. Attorneys, however, are not the only people who can prosecute cases. Instead, Congress has provided that almost “[a]ll functions of other officers of the Department of Justice … are vested in the Attorney General.” Furthermore, “the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys … in the discharge of their respective duties,” and the Attorney General—not a U.S. Attorney— “may appoint” and “remov[e]” other prosecutors. In other words, the Attorney General, who serves at the pleasure of the President, runs the Department of Justice and may tell U.S. Attorneys what to do.

Given the preeminent role of the Attorney General, you may wonder why U.S. Attorneys are so important that the Senate must confirm them. If you’re particularly bold, you may wonder why we even have this office at all—why not consolidate operations?  

The answer is that Congress decides. Under the Appointments Clause, the President “shall nominate, and by and with the Advice and Consent of the Senate … Officers of the United States.” The Clause, however, contains an exception: “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Thus, for certain lower level positions, Congress may vest appointment authority in the President, an agency head, or a court, but it doesn’t have to do so.

U.S. Attorneys almost certainly are “inferior Officers” given the Attorney General’s extensive control over what all they can do. If Congress tried to meaningfully enhance their independence from the Attorney General, the exception for inferior officers would not apply (because U.S. Attorneys no longer would be inferior officers but rather principal ones), and the only way to appoint a principal officer would be through presidential nomination and senatorial confirmation—and the officer would still be subject to being fired at will by the President under Slaughter.  This point is relevant to Rogoff’s argument. If a court-appointed U.S. Attorney disobeys the Attorney General, what happens under his theory? If the answer is that the U.S. Attorney can continue in the office despite disobedience, is that U.S. Attorney really an inferior officer?  

Because U.S. Attorneys are inferior officers, Congress could allow the President to simply pick them. Instead, Congress has decided that the Senate should be involved—which is unsurprising as a policy choice given (i) criminal justice issues are not the same everywhere, and Senators are closer to their respective states; (ii) there is a long history of Senate confirmation for U.S. Attorneys; and (iii) Senators no doubt like having a say in who gets selected for such plum positions.   

Congress, however, has also enacted two other ways to appoint a U.S. Attorney. First, the Attorney General may appoint a U.S. Attorney for 120 days, provided that person’s confirmation was not previously denied by the Senate. Second, after such an appointment expires, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.” 

With that background in place, we can now think through the broken appointment process. Today, the Senate often does not confirm U.S. Attorneys, especially in blue states, because Senators refuse to return blue slips. The Senate, of course, could stop respecting blue slips, but that is unlikely because Senators in red states want leverage against future administrations. Because Senate confirmation is often effectively off the table, the Trump Administration has leaned into appointments by the Attorney General, but those appointments can’t last forever. A court has concluded that after the 120 days have run, the Attorney General cannot make another appointment, and other courts have ruled that the Attorney General generally cannot get around that restriction by delegating authority to someone else. The Supreme Court has not weighed in on these issues.

The upshot, in many cases, is a stalemate. The White House picks someone; the Senate doesn’t confirm that pick; the Attorney General’s interim choice runs out of time; some courts say that means judges now pick the U.S. Attorney; but then the White House fires the court-appointed U.S. Attorney. Of course, this stalemate does not mean that prosecution shuts down. Federal statutory law is plain that the Attorney General (and lawyers selected and supervised by the Attorney General) may also conduct prosecution within the same geographic districts as U.S. Attorneys, and there are very few things that Congress has authorized only a U.S. Attorney to do. But the ordinary structure created by Congress no longer functions.

What is the path forward? One option is that the Department of Justice can litigate whether, for example, the Attorney General can appoint multiple interim appointees. If the Department prevails in such litigation, this discussion will be moot—but the time, disruption, and risk inherent in prolonged appeals no doubt will weigh heavily on decision makers. Another option (proposed by Michael Fragoso) is for the Senate to stop respecting blue slips “if a district court appoints a U.S. Attorney contrary to the wishes of DOJ.” Red state senators may be wary of that option because, again, the shoe one day will be on the other foot, but if negotiations have broken down, perhaps they will conclude there is no real choice. And another option still would be for judges to try to appoint qualified U.S. Attorneys who are at least agreeable to the President. Thankfully, that often happens, even in blue states.    

However, here is the key point: Unless something changes, what’s probably going to happen is the Attorney General and others in Washington, D.C. will simply directly supervise more prosecution. I suspect many Senators will not like the outcome, but it is the path of least resistance given that Congress has broadly empowered the Attorney General to supervise prosecution nationwide. Again, “[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General,” who “shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed … in the discharge of their respective duties.”

The answer, therefore, is that if the Senate wants to preserve U.S. Attorneys as significant in the real world, it must confirm more U.S. Attorneys. That conclusion may be bitter for Democrats now (and for Republicans in the future), but the only long-term solution is a world in which appointments by the Attorney General and district courts are rare—which requires Senate confirmation. If the Senate won’t confirm U.S. Attorneys, the Executive Branch, now and in the future, will lean into the Attorney General’s own authority. And the more the Executive Branch does this, the more natural it will become—and thus power will shift to Washington. It is hard to see how that is a victory for U.S. Attorneys.        

Aaron L. Nielson is a senior fellow at the Civitas Institute and holds the Charles I. Francis Professorship in Law at the University of Texas at Austin School of Law.